THE SUN EXCHANGE
TERMS OF SERVICE
Last Updated: 27 October 2021 (the “Effective Date”)
These Terms of Service (“Terms”) apply to your access to and use of the websites, applications and other online services, including the Block-chain (as defined below) made available therein (collectively, the “Services”) provided or made available by The Sun Exchange, Inc., together with its subsidiaries, affiliates, nominees and assigns (collectively, “SunEx,” “we” or “us”). References to “you” and “your” include any entity you represent. By using our Services, you agree to these Terms. If you do not agree to these Terms, including the mandatory arbitration provision and class action waiver in Section 18, do not access or use our Services. If you have any questions about these Terms or our Services, please contact us via our contact us page. Capitalized terms used but not defined in these Terms have the meanings ascribed to them in Section 25.
PLEASE READ THESE TERMS CAREFULLY, INCLUDING THE MANDATORY ARBITRATION PROVISION IN SECTION 18, WHICH REQUIRES THAT DISPUTES BE RESOLVED BY FINAL AND BINDING ARBITRATION ON AN INDIVIDUAL BASIS, NOT A CLASS-WIDE OR CONSOLIDATED BASIS. IF YOU DO NOT WISH TO BE SUBJECT TO ARBITRATION, YOU MAY OPT OUT OF THE ARBITRATION PROVISION BY FOLLOWING THE INSTRUCTIONS PROVIDED IN SECTION 18.
BY ACCESSING THE SERVICES, YOU (a) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THESE TERMS AND (b) ACCEPT THESE TERMS AND AGREE THAT YOU ARE LEGALLY BOUND THEREBY, IN YOUR INDIVIDUAL CAPACITY AND FOR AND ON BEHALF OF ANY ENTITY FOR WHICH YOU USE THE SERVICES. YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY, AND ARE LEGALLY COMPETENT, TO ENTER INTO THESE TERMS. If you use the Services on behalf of another person or entity, (i) all references to “you” throughout these Terms will include that person or entity, (ii) you represent that you are authorized to accept these Terms on that person’s or entity’s behalf, and (iii) in the event you or the person or entity violates these Terms, the person or entity agrees to be responsible to us.
We may modify these Terms without prior notice to you, in our sole and absolute discretion, and any revisions to these Terms will be effective when posted on the Services, updating the date at the top of these Terms, or as we otherwise indicate via email. Unless we state otherwise in our notice, the amended Terms will be effective immediately, and your continued use of the Services after we provide such notice will confirm your acceptance of the changes. In addition, we may modify and amend the Definitive Agreements without prior notice to you, in our sole and absolute discretion, and any amendments to the Definitive Agreements will supersede such provisions of these Terms which are in conflict with the provisions of the amended Definitive Agreements, and the Terms shall automatically be amended accordingly. The amended Definitive Agreements shall be made available here, alternatively provided to you via email, and shall be effective immediately after we provide such notice to you. If you do not agree to the amended Terms, you must stop using the Services.
- The Services.
1.1 General. We provide an online commercial transaction and lease arrangement platform through which Account Holders may Order and Purchase Solar Cells. In addition, at each Owner’s option, for each Project and for each Solar Cell individually, we facilitate Cell Owner Agreements between Solar Cell Owners and us, for the purpose of Deploying the Solar Cells, together with Solar Equipment we acquire and own, into Projects by way of Consumer Asset Leases.
1.2 Projects. We conduct an analysis of each potential Project to determine its suitability to be featured on Services. We display on the Services our reasonable estimates of each Project’s potential performance, including the solar yield and the effective rate of return for the full term of the Cell Owner Agreement.
1.3 Project Consumers. We conduct a summary financial and operational analysis of each potential Consumer. We estimate if the Consumer possesses the operational and financial capacity to meet his or her obligations under our standard Consumer Asset Lease and the Definitive Agreements.
1.4 Project Information. Once we have determined a Project’s suitability, we make accessible on the Services the Project Information Document, which includes information we provide and Third-Party Information relevant to such Project, as part of a Crowdsale.
1.5 Additional Services. The Services may also include additional services relating to the origination, engineering, and operating maintenance of new Projects, and additional services in relation to Accounts and Crowdsales, as required.
- Certain Disclaimers.
The following disclaimers supplement the disclaimers made in our Legal Disclaimer, which are incorporated by reference herein:
3.1 General. We do not control, endorse or take responsibility for any Third-Party Information available on or linked to by our Services. Your use of our Services is at your sole risk. Our Services are provided “as is” and “as available” without warranties of any kind, either express or implied, including implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement. You assume the entire risk as to the quality and performance of the Services. In addition, SunEx does not represent or warrant that our Services are accurate, complete, reliable, current or error-free. While SunEx attempts to make your access to and use of our Services safe, we cannot and do not represent or warrant that our Services or servers are free of viruses or other harmful components. Any Third-Party Information provided to you (including information regarding the risk profile of any Project) may not be accurate. You should not wholly rely on the Project Information Document in determining whether to enter into a contractual relationship. ALL INFORMATION IN THE SERVICES AND THE PROJECT INFORMATION DOCUMENT WITH RESPECT TO THE QUALITY OR SUITABILITY OF ANY PROJECT, SOLAR CELL, CONSUMER, CELL OWNER AGREEMENT, OR ANTICIPATED RENTAL INCOME (INCLUDING, WITHOUT LIMITATION, RENTAL PAYMENTS) ARE ESTIMATES ONLY AND ARE NON-BINDING AND DO NOT CONSTITUTE AN ENDORSEMENT BY SUNEX OF THE QUALITY OR SUITABILITY THEREOF.
3.2 Applicable Law. Without limiting the generality of the disclaimers set forth in this Section 3, SunEx makes no representations or warranties whatsoever as to whether the Services are compliant with any laws, regulations, rules, or ordinances of any jurisdiction. You acknowledge and agree that no regulatory authority has examined or approved of the Services and that SunEx is not a broker-dealer or regulated by FINRA, nor is SunEx providing tax or legal advice to you. You represent and warrant that you have conducted or will conduct satisfactory due diligence before trading, processing, storing, holding, tracking, managing, issuing, accepting, or otherwise transacting in digital currency, tokens and/or smart contracts including, without limitation, that you have sought (or will seek) independent financial and/or legal advice where necessary or appropriate.
3.3 Digital Currency Risks. We may publish Block-chain Information. Based on such Block-chain Information, our Smart Contracts may calculate and effect Consumer Rental collection, effect Solar Cell Owner Rental payment, and otherwise take such automated Project management actions, as we may determine from time to time. SUNEX DOES NOT OWN OR CONTROL THE UNDERLYING SOFTWARE PROTOCOLS (INCLUDING WITHOUT LIMITATION ANY BLOCK-CHAIN SOFTWARE OR TECHNOLOGY AND/OR ANY OTHER CODE OPERATING ON OR EXECUTING IN CONNECTION WITH SUCH SOFTWARE OR TECHNOLOGY) WHICH GOVERN THE OPERATION OF DIGITAL CURRENCY, “TOKENS” (INCLUDING, WITHOUT LIMITATION, NON-FUNGIBLE ETHEREUM TOKENS ERC20, ERC721, AND FUTURE ITERATIONS OF SUCH TOKENS) (COLLECTIVELY, “TOKENS”), OR OTHER COMPUTERIZED TRANSACTION PROTOCOLS INTENDED TO DIGITALLY FACILITATE, VERIFY, OR ENFORCE THE NEGOTIATION OR PERFORMANCE OF A CONTRACT (INCLUDING, WITHOUT LIMITATION, THOSE THAT TAKE PLACE ON A BLOCK-CHAIN) (COLLECTIVELY, “SMART CONTRACTS”). IN GENERAL, THE UNDERLYING PROTOCOLS ARE OPEN-SOURCE AND ANYONE CAN USE, COPY, MODIFY, AND DISTRIBUTE THEM. BY USING THE SERVICES, YOU ACKNOWLEDGE AND AGREE: (A) THAT SUNEX IS NOT RESPONSIBLE FOR OPERATION OF THE UNDERLYING PROTOCOLS AND THAT SUNEX MAKES NO GUARANTEE OF THEIR FUNCTIONALITY, SECURITY, OR AVAILABILITY; (B) THAT THE UNDERLYING PROTOCOLS ARE SUBJECT TO SUDDEN CHANGES IN OPERATING RULES (A/K/A “FORKS”), AND THAT SUCH FORKS MAY MATERIALLY AFFECT THE VALUE, FUNCTION, AND/OR EVEN THE NAME OF THE DIGITAL CURRENCY, TOKENS, AND/OR SMART CONTRACTS; AND © THE RISK OF LOSS IN PURCHASING, SELLING, TRADING, HOLDING, MANAGING, ACCEPTING, OR OTHERWISE TRANSACTING IN DIGITAL CURRENCY, TOKENS, AND/OR SMART CONTRACTS CAN BE SUBSTANTIAL AND YOU ASSUME ALL RISKS ASSOCIATED WITH SUCH PURCHASING, SELLING, TRADING, HOLDING, MANAGING, ACCEPTING, OR OTHERWISE TRANSACTING IN SUCH DIGITAL CURRENCY, TOKENS, AND/OR SMART CONTRACTS, INCLUDING WITHOUT LIMITATION PRICE VOLATILITY RISKS, SECURITY RISKS, RISKS OF LOSS AND ANY OTHER RISKS. YOU SHOULD THEREFORE CAREFULLY CONSIDER WHETHER TRADING, PROCESSING, STORING, HOLDING, TRACKING, MANAGING, ISSUING, ACCEPTING, OR OTHERWISE TRANSACTING IN DIGITAL CURRENCY, TOKENS, AND/OR SMART CONTRACTS IS SUITABLE FOR YOU IN LIGHT OF YOUR FINANCIAL CONDITION. SUNEX WILL HAVE NO LIABILITY FOR ANY DAMAGE, LIABILITIES, LOSSES (INCLUDING ANY LOSS OF DATA OR PROFITS), OR ANY OTHER CONSEQUENCES THAT YOU OR ANY OTHER THIRD PARTY MAY INCUR AS A RESULT OF TRADING, PROCESSING, STORING, HOLDING, TRACKING, MANAGING, ISSUING, ACCEPTING, OR OTHERWISE TRANSACTING IN DIGITAL CURRENCY, TOKENS, AND/OR SMART CONTRACTS. You represent and warrant that you have sufficient understanding of Tokens, Token storage mechanisms, and Block-chain technology to understand these Terms and to appreciate the risks and implications of accepting Tokens. You are responsible for implementing reasonable measures for securing your Wallet and any other address, wallet, vault, or other storage mechanism you use to receive, hold, or access Tokens received from SunEx, including any requisite private keys or other credentials necessary to access such storage mechanisms. If your private keys or other access credentials are lost, you may lose access to your Tokens. You expressly acknowledge and agree that SunEx will not be responsible or liable for any damages, losses, costs, penalties, fines, or expenses arising out of or relating to (x) your failure to implement reasonable measures to secure the Wallet or any other wallet, vault, or other storage mechanism you use to receive and hold Tokens or the relevant access credentials, or (y) the loss of or unauthorized use of any of your access credentials. “Wallet” means a web-based application or hardware-based device used to hold, spend, receive, and track Tokens. You represent and warrant that you are not (i) a citizen or resident of a geographic area in which use of Tokens is prohibited by law, decree, regulation, treaty, or administrative act, (ii) a citizen or resident of, or located in, a geographic area that is subject to U.S. or other applicable sanctions or embargoes, or (iii) an individual, or an individual employed by or associated with an entity, that is identified on the U.S. Department of Commerce’s Denied Persons or Entity List, the U.S. Department of Treasury’s Specially Designated Nationals or Blocked Persons Lists, or the U.S. Department of State’s Debarred Persons List. If your country of residence or other circumstances change such that the above representations are no longer accurate, then you will immediately notify SunEx.
3.4 Transacting Risks. ALTHOUGH SUNEX TAKES CERTAIN REASONABLE STEPS TO DETERMINE SUITABILITY OF PROJECTS AND CONSUMERS, BY BECOMING A SOLAR CELL LESSOR YOU FULLY ACCEPT ALL RISKS ASSOCIATED WITH DEPLOYMENT OF THE SOLAR CELLS, INCLUDING THE RISK THAT A SOLAR CELL FAILS TO GENERATE THE AMOUNT OF OUR PROJECTED SOLAR CELL OWNER RENTAL, THE RISK THAT A CONSUMER WILL FAIL TO MEET HIS OR HER OBLIGATIONS UNDER THE CONSUMER ASSET LEASE AND THE DEFINITIVE AGREEMENTS, AND THE RISK THAT THE SOLAR CELL PURCHASE PRICE IS COMPLETELY LOST. SunEx as party to any Cell Owner Agreement and/or Consumer Asset Lease has no control over the installation schedule or performance of the referenced Project, and will not be held responsible for any operational or financial performance failure, delay, payment delinquency, payment default, failure to realize insurance claims, theft, or other event leading to loss of Solar Cell Owner Rental or the purchase price of the Solar Cell.
3.5 No Securities; No Investment Advice. None of the products or services made available via the Services (including, without limitation, any the Solar Cells) are securities. Neither SunEx nor of any of its principals, directors, employees, or representatives are providing any investment advice through your use of the Services. SunEx:
3.5.1 is not an investment adviser;
3.5.2 is not registered with the securities and exchange commission or any state regulator;
3.5.3 is not a registered broker-dealer; and
3.5.4 is not regulated by the financial industry regulatory association (“FINRA”).
SunEx does not endorse or recommend you or any third party to purchase, sell, trade, process, store, hold, track, manage, issue, or otherwise transact in any Solar Cells, securities, Digital Currency, Tokens, and/or Smart Contracts and SunEx will not be liable or responsible for any decisions you make to purchase, sell, trade, process, store, hold, track, manage, issue, or otherwise transact in any Solar Cells, securities, Digital Currency, Tokens, and/or Smart Contracts, which such decisions are yours alone.
3.6 Third-Party Information. We may (a) provide information about, or links to, third-party products, services, activities or events, (b) allow third parties to make their content and information available on or through the Services, or © include in the Services (including Block-chain Information and/or any Project Information Document) and/or Definitive Agreements certain financial, operational and other information of electricity Consumers, information related to the EPC, O&M, equipment manufacturers, surveyors and other third parties associated with our Projects, electricity tariffs in the Project State, solar irradiance data, and/or data and forecasts for the solar equipment used in our Projects (collectively, “Third-Party Information”). We do not control or endorse, and make no representations or warranties regarding, any third parties or any Third-Party Information, and your interactions with such third parties and access to and use of such Third-Party Information is at your own risk.
- Eligibility and Accounts
4.1 Username and Password. In order to become a Registered User to access portions of the Services and receive notifications from SunEx, you will be required to create a username and password, and provide certain confidential Personal Information to us, such as your email address. You must be at least 18 years of age (or the age of legal majority where you reside) to create a username and password.
4.2 Requesting an Account; Information. If you wish to consider Projects for Solar Cell acquisition, you must request SunEx to create an Account. All Solar Cell Owners must be Account Holders. In connection with the Account request process and disbursement of Rental Payments or other payments herein, you agree to provide us with the information we request for the purposes of Onboarding Compliance, including identity verification, payment verification, and the detecting of money laundering, terrorist financing, fraud, or any other financial crimes, including, without limitation, certain Personal Information, Standing Instructions, and other information relevant to the request, and you permit us to keep a record of such information. In providing us with this or any other information that may be required, you confirm that the information is accurate and authentic. You agree to keep us updated if any of the information you provide changes. Your access to the Services and the limits that apply to your use of the Services may be altered as a result of information collected about you on an ongoing basis. You authorize us to make inquiries, whether directly or through third parties, that we consider necessary to verify your identity or protect you and/or us against fraud or other financial crime, and to take action we reasonably deem necessary based on the results of such inquiries. When we carry out these inquiries, you acknowledge and agree that your Personal Information may be disclosed to credit reference and fraud prevention or financial crime agencies and that these agencies may respond to our inquiries in full.
4.3 Acceptance or Rejection. SunEx may accept or reject all Account requests in its sole and absolute discretion.
4.4 Account Security. You must maintain the security of your Account. You may not permit others to use your Account credentials. If you discover or suspect that someone has accessed your Account without your permission, you must notify us promptly in writing. You are responsible for use of the Services in connection with your Account (including the making or acceptance of a binding offer or the entering into a contractual obligation). SunEx reserves the right not to act on your instructions in its sole discretion, including, without limitation, if it believes that someone is using your Account in an unauthorized or fraudulent manner.
4.5 Balances and Currencies. Account Holders may maintain fiat and Digital Currency Account Balances with us, which we will maintain in a trust account at the Escrow Bank, in your Wallet, or in another cryptocurrency exchange chosen by us, for the purpose of entering the commercial transactions contemplated on the Services, in these Terms and in the Definitive Agreements. As of the Effective Date, Purchases may only be made in [South Africa Rand (ZAR)] or in Bitcoin (BTC).
4.6 Standing Instructions. Prior to entering an Order for Solar Cells, all Account Holders must specify their ZAR or BTC Standing Instructions. In the case of ZAR, Standing Instructions must be a complete and correct beneficiary name, bank account number and branch code at a regulated financial institution in South Africa. In the case of BTC, Standing Instructions must be a valid Bitcoin Wallet address. From the time of each Crowdsale End and thereafter unless otherwise notified by SunEx, Solar Cell Owners must maintain valid Standing Instructions for the receipt of Solar Cell Owner Rental payments in ZAR, or the equivalent in BTC, as the case may require. For the avoidance of doubt, Solar Cell Owners without a valid ZAR account must provide a Bitcoin Wallet address as their Standing Instructions.
4.7 Suspending Inactive Accounts. In addition to, and without limiting SunEx’s right to suspend Accounts at any time in its sole discretion with or without notice to you, SunEx will suspend your Accounts with no transaction history for a continuous period of two (2) years. SunEx will use reasonable efforts to notify you prior to suspension by sending an email to the email address we have on file. If your Account remains inactive within thirty (30) days after we last notify you via email, we will suspend it and you will forfeit all sums held in the Account, which will not be returned to you.
4.8 Terminating Accounts; Returns. You may terminate your Account or request return of Account Balances at any time, with written notice to SunEx. Upon our receipt of your termination or return request, we will use reasonable efforts to return your Account Balance to the bank account you have on file with us and terminate your Account if requested to do so. We will arrange for Payment Processing, net of Transaction Expenses, and will arrange payment of your Account Balance within a reasonable time period after your request; provided, however, that (a) we may, in our sole discretion, decline to return Account Balances of less than the equivalent of USD $5 in Project Currency, net of Transaction Fees and (b) you acknowledge that you are responsible for maintaining up-to-date and accurate bank account information and if such information is or becomes inaccurate, SunEx will be unable to return any Account Balances or other amounts to you. If you terminate an Account, you will be subject to the surviving provisions of these Terms and may remain subject to certain provisions of Cell Owner Agreements into which you have entered.
5.1 Crowdsales. From time to time, SunEx will arrange Crowdsales for Prospective Projects or Pre-Built Projects, making accessible to Account Holders on the Services the Project Information Documents, Cell Owner Agreements and other information for their consideration. The Services will indicate the Price Per Cell and, in cases of Prospective Projects, will include the Target Cells Amount and may include a Target Amount. We will periodically calculate and communicate the Ordered Cells Amount, and the number of Solar Cells remaining to be Purchased.
5.2 Escrow Accounts. We may establish a Pre-Payment Escrow Account, Consumer Rental Escrow Account, and Reserve Escrow Account for each Project, at Escrow Banks that we select in our sole and absolute discretion, subject to our Rating Requirement. Funds in Escrow Accounts will not accrue interest for the benefit of Account Holders. We may use interest earned on Escrow Account balances to pay costs and expenses related to the Project, in our sole and absolute discretion.
5.3 Submitting Orders. After you have read the Project Information Documents and related information and decided to Order, you must then submit, using your preferred Payment Processing method from those indicated on the Services, a Pre-Payment in Eligible Currency to the appropriate Pre-Payment Escrow Account indicated on the Services and email proof of payment to payments [at] thesunexchange.com. Payment Processing may be arranged through any Eligible Currency, including BTC and ZAR, and through any means including Visa, MasterCard, Diners or American Express Cards or by bank transfer, the details of which will be provided for each Crowdsale. If your Payment Processing is by credit card, you authorize us (or our third-party payment processor) to charge your credit card that we have on file in your Account.
5.4 Payment Gateway. It is recorded herein that SunEx makes use of services provided PayGate (Pty) Ltd (“PayGate”), an approved payment gateway for South African Banks, in our Payment Processing. PayGate makes use of Secure Socket Layer 3 encryption when processing your card details, which you will have to enter into PayGate’s secure site during purchase and which will not stored on our own website – your User Content will be stored separately from your card details. For more details on PayGate, and to view their security certificate and policy, you are encouraged to visit www.paygate.co.za.
5.5 Validating Orders and Electing Delivery. We will validate your Order in our sole discretion upon receipt of proof of payment. We may refuse to process an Order, deposit Order funds, or honor requests for sales, for any reason, in our sole and absolute discretion. You may Elect Delivery for any number of Solar Cells, provided you Elect Delivery prior to Crowdsale End or we may Deploy them. If you Elect Delivery, we will allocate the number of Purchased Solar Cells for Elected Delivery first and will Deploy the remainder into the Project. If no Elected Delivery is specified, all Purchased Solar Cells will automatically be Deployed into the Project. By submitting an Order, you (a) represent and warrant that you have read and understood all information included in the Project Information Documents, including all risk factors described in the Project Information Documents and (b) unless you Elect Delivery (which must occur prior to Crowdsale End to be effective and valid), agree to enter and be bound by the terms of the Cell Owner Agreement for all Solar Cells to be Deployed, which will become effective upon Crowdsale End. Prior to Crowdsale End or our cancellation of the Crowdsale, you cannot cancel Orders and Pre-Payments will not be returned, except in the case of manifest error. During this time, Pre-Payments will be held for your benefit denominated in the Eligible Currency in the relevant Pre-Payment Escrow Account.
5.6 Closing. When the available Solar Cells in a Pre-Built Project are sold or Target Cells Amount (and Target Amount, if relevant) in a Prospective Project are achieved, in each case net of any Solar Cells for Elected Delivery, we will cease accepting Orders on the Services and will announce Crowdsale End. We may communicate this suddenly and without prior notice. Thereafter, with respect to the Pre-Payments, we will arrange for the sale of Other Currencies and the purchase of the Project Currency, sufficient for each Account Holder to Purchase an integer number of Solar Cells, net of Transaction Expenses (“Converted Pre-Payments”). The foreign exchange rates we use, and Transaction Expenses, will be determined in our sole and absolute discretion. In cases of Prospective Projects, in the event that aggregate Pre-Payments enables the Purchase of greater than the Target Cells Amount, we will allocate Solar Cells to Account Holders in our sole and absolute discretion, giving preference to earlier Orders, and considering other factors as required. All or a portion of any Pre-Payment not converted to the Project Currency will remain in each Pre-Payment Escrow Account as Excess Pre-Payments and these will be returned to the relevant Account Holders. Once we complete the Converted Pre-Payments, we will apply Converted Pre-Payments as follows:
5.6.1 in Pre-Built Projects, to SunEx for its benefit; and
5.6.2 in Prospective Projects, as follows:
(i) first, to SunEx, a fee for services in arranging the Crowdsale;
(ii) second, to the EPC, to pay the turnkey EPC contract price, which will be allocated to pay (1) fees, costs and expenses associated with the engineering, procurement and installation of the Project; (2) purchase price of solar photovoltaic modules, inside of which reside the Solar Cells (which such Solar Cells will become the property of the relevant Owners upon delivery thereof by the EPC to SunEx, with ownership of the remainder of the solar photovoltaic molecule granted to SunEx); and (3) purchase price of the Solar Equipment, which will be owned by SunEx;
(iii) third, for the payment of any initial Taxes due and any required licensing fees;
(iv) fourth, to the Insurance Providers, if applicable, for insurance policy premiums; and
(v) fifth, if applicable, for deposit to a segregated Reserve Escrow Account at an Escrow Bank for the Project, to be allocated to Project repairs and replacement of equipment as may be necessary.
5.7 EPC Testing and Solar Cell Owner Rental. All Projects are subject to testing by the EPC and the EPC’s determination of Project compliance with all Project state regulations, if any, and standards and the EPC and SunEx sign the final completion certificate (CoC) confirming the system has been installed and is operational. When SunEx determines that the Project is capable of operation, we will declare the Commercial Operation Date (“COD”) on the Services, at which time the Consumer Asset Lease shall commence and Consumer Rental and Solar Cell Owner Rental may begin to accrue (provided, however, that in the case of Pre-Built Projects for which the COD is prior to the date of Confirmation, Solar Cell Owner Rental will accrue beginning on the Confirmation date). Solar Cell Owner Rental will not accrue (a) prior to the COD or (b) to Solar Cells that are not Deployed. Notwithstanding, and should Early Energy be consumed by the Consumer, Solar Cell Owner Rental shall accrue in respect of Solar Cells Deployed in such Early Energy consumed.
5.8 Confirmations and Disclosures of Performance. Following successful Purchase of a Solar Cell on the Services, you will be able to view a Confirmation on a private password-protected part of the Services and, unless you Elect Delivery, you will be able to monitor on the Services the operational and financial performance of that Project in which your Solar Cells have been Deployed and we may disclose on the Services the performance of each individual Solar Cell, listed by ID (as defined below). Subject to the Project construction schedule and availability of information we request from the EPC, we will also provide confirmation of the unique identifying label (“ID”) for each individual Solar Cell Purchased. In the case of sales, IDs will be provided with the initial confirmation. You are fully responsible for the maintenance of passwords and control of access to Confirmations.
5.9 Solar Cells Not Guaranteed. Purchase of Solar Cells is subject to availability, receipt of payment, and the engineering, procurement, installation and testing schedule of a Project. In cases that Solar Cells become unavailable, SunEx will use commercially reasonable efforts to, but is not required to, return your Pre-Payment or Converted Pre-Payment to your Account within 30 days.
5.10 No Security Interest. You may not pledge any portion of your interest in a Solar Cell as security or collateral for any debt obligation.
- Elected Delivery.
6.1 Events Triggering Elected Delivery. If any of the following events occurs, it will trigger Elected Delivery with respect to any Solar Cell in question:
6.1.1 You opt, prior to Crowdsale End, not to Deploy the Solar Cell in the related Project;
6.1.2 You lawfully terminate your Account with SunEx;
6.1.3 You lawfully terminate your Cell Owner Agreement;
6.1.4 You lawfully request removal of your Solar Cell from the Project;
6.1.5 The related Project experiences an [Event of Loss or an Event of Default] under the terms of the Cell Owner Agreement (as defined in the Cell Owner Agreement) and either (a) you opt for SunEx not to seek to Deploy that Solar Cell into a new and similar project within 360 days or (b) SunEx is unable to find a new and similar project for a Solar Cell re-deployment within 360 days after such Event of Loss or Default has occurred on the relevant Project; or
6.1.6 You provide us with 60 days’ written notice that you have Elected Delivery for a Deployed Solar Cell.
6.2 Our Actions on Elected Delivery. When we receive notification of Elected Delivery, we will inform you of the Available Date at the Project address. You must then notify us of your intended Delivery Date. Elected Delivery incurs a SunEx facilitation fee equal to five (5) percent of the original Purchase price as well as other reclamation charges related to labor and access equipment costs. If you fail to pay the facilitation and other fees prior to the Delivery Date, you will forfeit your Solar Cell to SunEx.
6.3 Effects of Elected Delivery. Elected Delivery will signify your decision to terminate your Cell Owner Agreement, subject to its terms and conditions, effective as of the Available Date. If you Purchased a Solar Cell and Elected Delivery occurs, you will be required to collect the Solar Cell at the Project address, or arrange for delivery at additional expense. Elected Delivery is final. You cannot elect to have the Solar Cell Deployed into the same Project again, nor can you request Deployment into a different Project.
6.4 Acknowledgements. You acknowledge and agree that: (a) Projects utilize Solar Cells together with Solar Equipment, and Solar Cells are contained within framed and covered solar modules, mounted on rooftops or other areas difficult to access, making removal difficult and risking partial or total loss of value to the Solar Cell; (b) SunEx, in coordination with the O&M, will remove Solar Cells from modules for Elected Delivery in a manner of its choosing, to minimize the impact on the Solar Cell, but will not be responsible or liable for any damage or loss to the Solar Cells in connection with such removal; and © SunEx makes no representations, warranties, guarantees, or other promises that an Elected Delivery Solar Cell that has been Deployed, removed, and reclaimed will remain intact, in good working condition, can be deployed at an alternative project, or will retain any of its value.
- Cell Owner Agreements and Solar Cell Owner Rental.
7.1 General. Each nation and jurisdiction has its own laws and regulations governing the offering of financial and other products that enable a purchaser to earn income over time. In the event SunEx reasonably determines that the sale of Solar Cells and subsequent payment of Solar Cell Owner Rental in excess of the original purchase price would require SunEx to register the sale as a securities offering, or obtain an exemption under securities laws or regulations in the Owner’s jurisdiction, SunEx has the option to not pay the Owner Solar Cell Owner Rental in excess of the original Solar Cells purchase price, and instead donate only those excess Solar Cell Owner Rental amounts received from the Project to a charity selected by the Owner.
7.2 Cell Owner Agreement Terms. Solar Cell Owners will enter into and be bound by the terms of the relevant Cell Owner Agreement, which will be made available to all Account Holders on the Services prior to a Crowdsale End, and thereafter for the duration of the Cell Owner Agreement.
7.3 Solar Cell Owner Rental. Subject to the terms and conditions of each Cell Owner Agreement, Solar Cell Owner Rental for each individual Project will only be due and payable to Solar Cell Owners to the extent sufficient funds are available from funds received by SunEx from the Consumer in respect of such Project, after deduction of taxes, fees, costs, expenses, insurance policy deductibles, Transaction Expenses, and scheduled deposits to maintenance reserves. Funds received by SunEx with respect to other Projects will not be available to pay Solar Cell Owner Rental for a particular Project. On each Calculation Date and with respect to each Calculation Period set forth in Schedule A to the Cell Owner Agreement, SunEx will calculate the Solar Cell Owner Rental in Project Currency as follows:
7.3.1 SunEx will calculate Consumer Rental Due in consideration of the solar yield of the Project and Electricity Price, according to the terms in the Cell Owner Agreement;
7.3.2 SunEx will calculate the Available Rental, which will be (a) the balance of the Consumer Rental Escrow Account, or (b) the Consumer Rental Due, whichever is lesser;
7.3.3 SunEx will calculate due and payable Project Expenses as of the end of the Calculation Period, which will include all scheduled and unscheduled costs, expenses and fees associated with Project operation and maintenance and may include insurance premiums, taxes, legal and other costs associated with the Cell Owner Agreement, and maintenance of the real property interest, including but not limited to legal fees and other transaction costs;
7.3.4 SunEx will calculate the Solar Cell Owner Rental as (a) Available Rental less Project Expenses, or (b) zero, whichever is greater. However, the Solar Cell Owner Rental shall be zero prior to the Commercial Operation Date, save for in respect of any Early Energy consumed by the Consumer. For the avoidance of doubt, in any Calculation Period, the amount of Solar Cell Owner Rental due is limited by the conditions of Section 7.3 above;
7.4 Carry-Forwards. To the extent some or all Project expenses remain unpaid after calculation and payment of Solar Cell Owner Rental, the amount may be carried forward to subsequent Calculation Periods. The amount of Available Rental less Project Expenses calculated in 7.3.4 above, to the extent less than zero, may not be carried forward to subsequent Calculation Periods.
7.5 For the duration of the Consumer Asset Lease, Consumer Rental received in the Consumer Rental Escrow Account with respect to each individual Project will be applied automatically:
7.5.1 first, to pay any Taxes, license fees to utilities, or other government fees required to legally operate the Project;
7.5.2 second, towards the payment of Insurance premiums to insure the Project;
7.5.3 third, to pay fees and expenses of EPC and O&M for services rendered in the particular period and to other parties providing services to the Projects, including in relation to services outsourced to or performed by any third party in relation to the maintenance, management, repair and/or operation of the Project, in such currency as stated in the O&M or any other service agreement;
7.5.4 fourth, to pay SunEx’s expenses incurred in connection with the execution of Consumer Asset Lease and Cell Owner Agreement, but excluding SunEx’s own fees;
7.5.5 fifth, to deposit funds into the reserve accounts established for regular or extraordinary O&M services;
7.5.6 sixth, pro rata to their Owners’ ownership of the Solar Cells applied on the particular Project, and subject to any maximum rental amount specified in the relevant Cell Owner Agreement, to Solar Cell Owners for the lease of the Solar Cells; and lastly;
7.5.7 to pay fees to SunEx.
7.6 Foreign Exchange Disruption Event. In the event a foreign exchange Disruption Event occurs such that Solar Cell Owner Rental cannot be paid in the Project Currency, SunEx will endeavor to have Solar Cell Owner Rental obligations settle with a Non-Deliverable Substitute currency.
7.7 Taxes. Owners are individually responsible for all taxes assessed on Solar Cell Owner Rental after payment by SunEx. SunEx will pay Solar Cell Owner Rental net of any taxes assessed by any Governmental Authority on the Project. In addition, Cell Owners will not be entitled to be refunded for any VAT expense which was successfully recouped from any Governmental Authority. Sun-Ex shall be entitled to utilise any amounts so recouped to defray any Project Expenses.
7.8 Terminating Cell Owner Agreements. If you terminate your Cell Owner Agreement to reclaim possession of your Solar Cell, you will be charged for all costs incurred in removing the Solar Cell from the Project, including access equipment and labor costs. If you wish to reclaim possession of your Purchased Solar Cell, you must request reclamation in writing to SunEx and SunEx will provide you with a cost estimate for reclamation, which will include a 5% facilitation fee, which SunEx shall be entitled to deduct from your Account balance, and to which deduction you hereto irrevocably consent. You are fully responsible for collecting the Solar Cell from the Project location.
- Authorized SunEx Actions. BY PURCHASING A SOLAR CELL, YOU AUTHORIZE SUNEX TO TAKE THE ACTIONS SET FORTH IN THIS SECTION 8.
8.1 Leases. You authorize and mandate SunEx with full power of attorney to lease Solar Cells to be Deployed to the Consumer on your behalf, together with the Solar Equipment granted to SunEx, pursuant to the Consumer Asset Lease. You authorize SunEx to make all reasonable endeavors to ensure the Projects remain available for lease under the Consumer Asset Lease for the duration of each Consumer Asset Lease Agreement
8.2 Entry into Definitive Agreements. You authorize SunEx to enter into Definitive Agreements for Projects, including but not limited to Consumer Asset Leases, EPC agreements, O&M agreements, solar energy site lease agreements, solar energy easement agreements, Insurance agreements, and other agreements as may become necessary to design, construct, install, test, operate and repair such Project over the term of the Cell Owner Agreement. In the event of a conflict between the Definitive Agreements and these Terms, the provisions of the Definitive Agreements shall prevail.
8.3 Receipt of Funds. You authorize SunEx to make all endeavors required by applicable law and standard practices for an organization of its nature receiving funds from third parties, to avoid any person or entity failing to satisfy Onboarding Compliance to become Owners. If SunEx becomes aware that an Owner is blacklisted or in breach of the restrictions contemplated, SunEx will cancel such Owner’s Accounts and refund and refinance their Solar Cells with immediate effect without any interruption to the Consumer Asset Lease.
8.4 Application of Consumer Rentals. You authorize SunEx to automatically apply Consumer Rentals to make the payments in accordance with the cash-flow waterfall as contemplated in Section 7.
8.5 Deed of Assignment and Nomination. You authorize SunEx to conclude a deed of assignment in respect of each Definitive Agreement. In addition, you authorize SunEx to nominate a related entity, including a trust, in respect of each Definitive Agreement, in terms of which all rights and obligations in respect of SunEx shall transfer to such nominee.
8.6 Initiation of Legal and Other Claims. You authorize SunEx to initiate and continue with any (a) legal claims for damages or recovery, petitions for bankruptcy or liquidation, or other proceedings, whether through arbitration or a court system, on behalf of the SunEx and the Solar Cell Lessors and (b) claims under manufacturer warranties, insurance policies or reinsurance policies related to the Project.
8.7 Payment of Project Costs.
You authorize SunEx to pay Taxes, O&M and other expenses, repair costs, insurance premiums, deposits to reserves, Transaction Expenses and all other costs as the case may require, for the purpose of keeping the Project operating securely and at a satisfactory performance level. You agree that such costs will be deducted from Consumer Rental received by SunEx prior to distribution of Solar Cell Owner Rental to Solar Cell Owners.
8.8 Facilitation of Meetings. You authorize SunEx to facilitate physical and virtual general meetings of Solar Cell Owners to discuss events having Material Adverse Effect on the Project, and arrange proxy voting, as required.
8.9 Monitoring Performance. You authorize SunEx to monitor and maintain performance data for Deployed Solar Cells, and to make available to the general public such data on the Services, including as Block-chain Information, subject to SunEx not releasing information regarding the Owners’ identities.
8.10 Payment of Consumer Rentals. You authorize SunEx to calculate and agree with Consumers the required amount and timing for payment of Consumer Rental.
8.11 Facilitation of Project Processes. You authorize SunEx Parties to install smart billing meters, Internet-of-Things data loggers, software on the Block-chain, and other software to facilitate and transparency and automation of Projects’ operational and financial processes, including Consumer Rental collection, the payment of Taxes, fees and expenses, and the distribution of Solar Cell Owner Rental to Solar Cell Lessors.
- Default or Termination of Project or Lease.
9.1 Project Default Notice. Should the Project fail or default for any reason, including but not limited to a Consumer’s failure to honor his or her obligations, a Consumer’s decision to terminate the Consumer Asset Lease, or a change in Project State regulation or taxation affecting the Project, we will notify each Solar Cell Lessor (the “Project Default Notice”). Thirty (30) days thereafter, each relevant Solar Cell Lessor may (a) request SunEx to attempt relocation of the applicable Solar Cell to an alternative but similar Project, in the sole and absolute discretion of SunEx, or (b) Elect Delivery. In the absence of response to Project Default Notice, Solar Cell Owners will be deemed to have Elected Delivery.
9.2 Initiation and Continuation of Legal Claims. SunEx may initiate and continue with any legal claims for damages or recovery, petitions for bankruptcy or liquidation, or other proceedings, whether through arbitration or a court system, on behalf of the SunEx and the Solar Cell Owners;
9.3 No Guarantee of Consumer Rental. We make every reasonable effort to ensure that the Project remains fully utilized as proposed, and that each Consumer honors his or her contractual obligations under the Definitive Agreements. However, for the avoidance of doubt, we cannot guarantee that the Consumer Rental and will be paid, and as a result, cannot guarantee that Solar Cell Owner Rental will be paid, or that you will recover the original purchase price of your Solar Cells.
9.4 Cancelation of Project. SUNEX RESERVES THE RIGHT TO CANCEL A PROJECT AND RETURN ALL ASSOCIATED ACCOUNT HOLDER’S PAYMENTS AT ANY TIME FOR ANY REASON WITHOUT NOTICE.
To the fullest extent permitted by applicable law, you will indemnify, defend, and hold harmless SunEx and our officers, directors, shareholders, agents, partners and employees (individually and collectively, the “SunEx Parties”) from and against any losses, liabilities, claims, demands, actions, proceedings, damages, expenses or costs (“Claims”) arising out of or related to your actual or alleged (a) breach of these Terms or improper use of the Services, (b) negligence or willful misconduct, or © breach of any law or the actual or alleged rights of a third party. You must cooperate with the SunEx Parties in defending such Claims and pay all fees, costs and expenses associated with defending such Claims (including attorneys’ fees and expenses). You also agree that SunEx may control the defense and settlement of any Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and SunEx or the other SunEx Parties.
- Limitation of Liability.
To the fullest extent permitted by law, SunEx and the other SunEx Parties will not be liable to you under any theory of liability—whether based in contract, tort, negligence, strict liability, warranty, or otherwise—for any indirect, consequential, exemplary, incidental, punitive or special damages or lost profits arising out of or in connection with the Services (including a breach of contract claim between you and another user), even if SunEx or the other SunEx Parties have been advised of the possibility of such damages. The total liability of SunEx and the other SunEx Parties for any claim arising out of or relating to these Terms or our Services, regardless of the form of the action, is limited to an amount in Project Currency equal to the aggregate amount in Project Currency of Purchases made by you on the Services. The limitations set forth in this section will not limit or exclude liability for matters in which liability cannot be excluded or limited under applicable law, whether through gross negligence, fraud or intentional misconduct of SunEx or the other SunEx Parties. Additionally, some jurisdictions may not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you.
To the fullest extent permitted by applicable law, you release SunEx and the other SunEx Parties from responsibility, liability, claims, demands, and/or damages (actual and consequential) of every kind and nature, known and unknown (including claims of negligence), arising out of or related to disputes between users and the acts or omissions of third parties.
You expressly waive any rights you may have under California Civil Code § 1542, which says “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”
- User Content
13.1 User Content. You may be required to upload content, including documents with respect to Onboarding Compliance and other materials (collectively, “User Content”) in order to use our Services. As between you and us and except for the license you grant below, you retain all rights in and to your User Content.
13.2 License to User Content. You hereby grant SunEx a perpetual, irrevocable, nonexclusive, royalty-free, worldwide, fully-paid, sub-licensable license to use, reproduce, prepare derivative works of, distribute copies of, perform, display, and otherwise exploit your User Content and any name, username or likeness provided in connection with your User Content in all media formats and channels now known or later developed without compensation to you. You understand that your User Content and any associated information in your account profile may be visible to other users of our Services. You may only provide User Content that is non-confidential and that you have all necessary rights to disclose.
13.3 Restrictions. You may not upload any User Content that violates these Terms or for which you do not have all the rights necessary to grant us the license described above. You represent and warrant that your User Content, and our use of such content as permitted by these Terms, will not violate any rights of or cause injury or harm to any person or entity. Although we have no obligation to screen, edit or monitor User Content, we may delete or remove User Content at any time and for any reason with or without notice.
- Prohibited Conduct and Content.
14.1 No Violations. You will not violate any applicable law, contract, intellectual property or other third-party right or commit a tort, and you are solely responsible for your conduct while accessing or using our Services. You will not:
14.1.1 Sell or resell our Services;
14.1.2 Copy, reproduce, distribute, publicly perform or publicly display all or a portion of our Services, except as expressly permitted by us or our licensors;
14.1.3 Modify our Services, remove any proprietary rights notices or markings, or otherwise make any derivative uses of our Services;
14.1.4 Falsely describe, omit material information about, or misrepresent yourself, including whether you have the financial ability to enter into the transactions facilitated on the Services;
14.1.5 Engage in any harassing, threatening, intimidating, predatory or stalking conduct;
14.1.6 Use or attempt to use another user’s Account without authorization from that user and SunEx;
14.1.7 Use our Services in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying our Services or that could damage, disable, overburden or impair the functioning of our Services in any manner;
14.1.8 Reverse engineer any aspect of our Services or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any part of our Services;
14.1.9 Attempt to circumvent any content-filtering techniques we employ or attempt to access any feature or area of our Services that you are not authorized to access;
14.1.10 Develop or use any third-party applications that interact with our Services without our prior written consent, including any scripts designed to scrape or extract data from our Services;
14.1.11 Bypass or ignore instructions contained in our robots.txt file; or
14.1.12 Use our Services for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates these Terms or brings us into disrepute
14.2 Further Restrictions. In addition, you may not provide any User Content or Feedback (as defined below) that:
14.2.1 Is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory or fraudulent;
14.2.2 Would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party or otherwise create liability or violate any local, state, national or international law;
14.2.3 Contains or depicts any statements, remarks or claims that do not reflect your honest views and experiences;
14.2.4 Impersonates, or misrepresents your affiliation with any person or entity;
14.2.5 Contains any unsolicited promotions, political campaigning, advertising or solicitations;
14.2.6 Contains any private or personal information of a third party without such third party’s consent;
14.2.7 Contains any viruses, corrupted data or other harmful, disruptive or destructive files or content; or
14.2.8 Is, in our sole judgment, objectionable or that restricts or inhibits any other person from using or enjoying our Services, or that may expose SunEx or others to any harm or liability of any type.
- Limited License; Copyright and Trademark
Our Services, including the text, graphics, images, photographs, videos, illustrations, trademarks, trade names, service marks, logos, slogans and other content contained therein are owned by or licensed to SunEx and are protected under both United States and foreign laws. Except as explicitly stated in these Terms, SunEx and our licensors reserve all rights in and to our Services. Subjects to these Terms, you are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable, revocable license to access and use our Services solely as expressly permitted by these Terms. Any use of our Services other than as specifically authorized in these Terms, without our prior written permission, is strictly prohibited and will terminate the license granted in these Terms.
“SunEx,” “The Sun Exchange,” and our logos, product or service names, slogans and the look and feel of the Services are our trademarks and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned on the Services are the property of their respective owners. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by us.
Any questions, comments, suggestions, ideas, original or creative materials or other information you submit about SunEx, other users or our Services (collectively, “Feedback”), is non-confidential and will be owned by SunEx. You hereby assign to us all of your rights, title and interest in and to such Feedback, including all intellectual property rights embodied in or related to such Feedback.
- Copyright Complaints.
In accordance with the Digital Millennium Copyright Act (“DMCA”) and other applicable law, we have adopted a policy of terminating, in appropriate circumstances, the accounts of users who repeatedly infringe the intellectual property rights of others. If you believe that anything on our Services infringes any copyright that you own or control, you may notify SunEx’s Designated Agent as follows:
Designated Agent: Saul Wainwright
Address: 525 West End Ave, Suite 10, New York City, New York, 10024, USA
E-Mail Address: legal [at] thesunexchange.com
Please see 17 U.S.C. §512©(3) for the requirements of a proper notification. Also, please note that if you knowingly misrepresent that any activity or material on our Services is infringing, you may be liable to SunEx for certain costs and damages.
- Arbitration Agreement.
Please read the following section carefully because it requires you to arbitrate certain disputes and claims with SunEx and limits the manner in which you can seek relief from us. No class or representative actions or arbitrations are allowed under this arbitration agreement.
Except for small claims disputes in which you or SunEx seek to bring an individual action in small claims court located in the county of your billing address or disputes in which you or SunEx seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, you and SunEx waive your rights to a jury trial and to have any dispute arising out of or related to these Terms or our Services resolved in court. Instead, for any dispute that you have against SunEx, you agree to first contact SunEx and attempt to resolve the claim informally by sending a written notice of your claim (“Notice”) to SunEx by email at legal [at] thesunexchange.com or by certified mail addressed to 525 West End Ave, Suite 10, New York City, New York 10024. The Notice must (a) include your name, residence address, email address, and telephone number; (b) describe the nature and basis of the claim; and © set forth the specific relief sought. Our notice to you will be similar in form to that described above. If you and SunEx cannot reach an agreement to resolve the claim within 30 days after such Notice is received, then either party may, as appropriate in accordance with this Section 18, submit the dispute to binding arbitration administered by the Judicial Arbitration and Mediation Services (“JAMS”) or, where applicable, in court.
If you are not domiciled or otherwise have a presence in the United States, then the following terms apply: All submitted disputes will be resolved through confidential binding arbitration held in London, England in accordance with the JAMS International Arbitration Rules. The tribunal will consist of three arbitrators or such other number as mutually agreed. The language to be used in the arbitral proceedings will be English. Judgment upon the award rendered by the arbitrator(s) may be entered by any court having jurisdiction thereof.
Otherwise, all submitted disputes will be resolved through confidential binding arbitration held in Wilmington, Delaware in accordance with the JAMS Streamlined Arbitration Rules and Procedures (“Rules”), which are available on the JAMS website and hereby incorporated by reference.
You either acknowledge and agree that you have read and understand the rules of JAMS or waive your opportunity to read the rules of JAMS and any claim that the rules of JAMS are unfair or should not apply for any reason.
You and SunEx agree that any dispute arising out of or related to these Terms or our Services is personal to you and SunEx and that any dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action or any other type of representative proceeding.
You and SunEx agree that these Terms affect interstate commerce, and that the enforceability of this Section 18 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the “FAA”), to the maximum extent permitted by applicable law. As limited by the FAA, these Terms and the JAMS Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any dispute and to grant any remedy that would otherwise be available in court, including the power to determine the question of arbitrability; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by these Terms. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual.
The arbitrators, SunEx, and you will maintain the confidentiality of any proceedings, including but not limited to, any and all information gathered, prepared, and presented for purposes of the arbitration or related to the dispute(s) therein. The arbitrators will have the authority to make appropriate rulings to safeguard that confidentiality, unless the law provides to the contrary.
You and SunEx agree that for any arbitration you initiate, you will pay the filing fee and SunEx will pay the remaining JAMS fees and costs. For any arbitration initiated by SunEx, SunEx will pay all JAMS fees and costs. If you are located outside the United States, then you and SunEx agree that the competent courts of London, England have non-exclusive jurisdiction over any appeals and the enforcement of the arbitration award. Otherwise, you and SunEx agree that the state or federal courts of the State of Delaware and the United States sitting in Wilmington, Delaware have exclusive jurisdiction over any appeals and the enforcement of an arbitration award.
Any claim arising out of or related to these Terms or our Services must be filed within 1 year after such claim arose; otherwise, the claim is permanently barred, which means that you and SunEx will not have the right to assert the claim.
You have the right to opt out of binding arbitration within thirty (30) days of the date you first accepted the terms of this Section 18 by emailing us at legal [at] thesunexchange.com. In order to be effective, the opt out notice must include your full name and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve disputes in accordance with Section 19.
If any portion of this arbitration section is found to be unenforceable or unlawful for any reason, (1) the unenforceable or unlawful provision shall be severed from these Terms; (2) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of the arbitration section or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to the arbitration section; and (3) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this arbitration section is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this Section 18 will be enforceable.
- Governing Law and Venue.
These Terms and your access to and use of our Services will be governed by and construed and enforced in accordance with the laws of the State of Delaware, without regard to conflict of law rules or principles (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any other jurisdiction.
If you are not domiciled or otherwise have a presence in the United States, then any dispute between the parties that is not subject to arbitration or cannot be heard in small claims court will be resolved in the competent courts of London, England. Otherwise, any dispute between the parties that is not subject to arbitration or cannot be heard in small claims court will be resolved in the state or federal courts of the State of Delaware and the United States, respectively, sitting in Wilmington, Delaware.
- Changes to these Terms.
We may make changes to these Terms from time to time. If we make changes, we will provide you with notice of such changes, such as by sending an email, providing a notice through our Services or updating the date at the top of these Terms. Unless we say otherwise in our notice, the amended Terms will be effective immediately and your continued access to and use of our Services after we provide notice will confirm your acceptance of the changes. If you do not agree to the amended Terms, you must stop accessing and using our Services.
- Modifying and Terminating Our Services.
We reserve the right to modify our Services or to suspend or stop providing all or portions of our Services at any time. You also have the right to stop using our Services at any time. We are not responsible for any loss or harm related to your inability to access or use our Services.
- Electronic Communications.
By creating an Account, you also consent to receive electronic communications from SunEx (e.g., via email or by posting notices on our Services). You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing.
If any provision or part of a provision of these Terms is unlawful, void or unenforceable, that provision or part of the provision is deemed severable from these Terms and does not affect the validity and enforceability of any remaining provisions
These Terms constitute the entire agreement between you and SunEx relating to your access to and use of our Services. Notwithstanding any other provisions of these Terms, Sections 2-14 and 16-25 survive any expiration or termination of these terms. The failure of SunEx to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third party beneficiary rights upon any other person or entity. These Terms may not be transferred, assigned or delegated by you, by operation of law or otherwise, without our prior written consent, and any attempted transfer, assignment or delegation without such consent will be void and without effect. We may freely transfer, assign or delegate these Terms or the Services, in whole or in part, without your prior written consent. Under California Civil Code Section 1789.3, California consumers are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at 1 (800) 952-5210.
- Defined Terms.
When used in these Terms, the following terms have the following meanings:
25.1 “Account” means an account granted by SunEx for the purpose of enabling people or entities satisfying international standard KYC, AML and OFAC regulatory requirements, and not involved in Impermissible Activity, to Order and Purchase Solar Cells; to enter into Cell Owner Agreements; to receive Solar Cell Owner Rental; and to perform related activities.
25.2 “Account Balances” means fiat and Digital Currency balances in the Account.
25.3 “Account Holder” means any person or entity who establishes and maintains a valid Account.
25.4 “Available Date” means the date and time after which the Solar Cell will be available for collection.
25.5 “Available Rental” means, for the relevant Calculation Period, in the Project Currency, the lesser of (a) Consumer Rental Due, and (b) funds on deposit in the Consumer Rental Escrow Account.
25.6 “Consumer Rental Due” means the amounts payable by the Consumer on certain dates as calculated and determined pursuant to Schedule A of the Cell Owner Agreement, subject to the terms and conditions of the Cell Owner Agreement.
25.7 “Block-chain” means a distributed database that maintains a continuously growing list of records called “blocks” in an open ledger.
25.8 “Block-chain Information” means information SunEx publishes on Block-chain.
25.9 “Calculation Dates” means the dates on which SunEx will calculate Consumer Rental Due, Available Rental, Project Expenses, and the Solar Cell Owner Rental
25.10 “Calculation Period” means the period of time for which SunEx will calculate Consumer Rental Due, Available Rental, Project Expenses, and Solar Cell Owner Rental.
25.11 “Cell Owner Agreement” means, with respect to each Project, the written agreement between the Owner and SunEx governing the relationship between these two parties in relation to the Solar Cells in terms of which, inter alia, SunEx is authorized by the Owner to enter into the Consumer Asset Lease.
25.12 “Commercial Operation Date” or “COD” means the date declared by SunEx to the Consumer as the date upon which the Consumer Asset Lease commences.
25.13 “Confirmation” means an encrypted communication of the transacted Purchase terms on a private password-protected part of our Services (including on the Block-chain). Such confirmation will include the price per cell in the Project name, Project Currency, number of cells purchased, Solar Cell manufacturer and specifications, applicable Transaction Expenses, transaction date and time, the ID and other information as the case may require.
25.14 “Consumer” means tenants or owners of premises where the solar electricity generation systems will be installed and with whom a Consumer Asset Lease will be concluded.
25.15 “Consumer Asset Lease” means, with respect to each Project, the written lease agreement between SunEx and the Consumer in respect of which the Solar Cells and Solar Equipment are leased, to a Consumer.
25.16 “Consumer Rental Escrow Account” means an Escrow Account specifically designated to receive and hold Consumer Rental for Projects on behalf of Solar Cell Owners.
25.17 “Consumer Rentals” means the lease rental payments by the Consumer to SunEx SA in terms of the Consumer Asset Lease, with respect to the entire solar plant of a Project.
25.18 “Crowdsale” means a campaign run through the Services to sell certain assets of a particular Project.
25.19 “Crowdsale End” means such time as we declare that the Target Cells Amount has been achieved, and if relevant, the Target Amount has been achieved, in SunEx’s sole and absolute discretion.
25.20 “Definitive Agreements” means the Cell Owner Agreement, Consumer Asset Lease Agreement, EPC Agreement, O&M Agreement, insurance policies, any other documents, terms & conditions or agreements required by SunEx to arrange for the financing of Projects and offering of Solar Cells.
25.21 “Delivery Date” means the Owner’s intended collection date and time, which must be no later than fourteen (14) calendar days after the Available Date.
25.22 “Deployment” means the utilization of a Solar Cell in a Project and “Deploy” shall have a similar meaning.
25.23 “Digital Currency” means digital currencies, commodities, “coins,” or other digital assets, including, without limitation, Bitcoin (BTC).
25.24 “Disruption Event” means an event which gives rise to an alternative basis for settling a transaction, as defined in the International Swaps and Derivatives Association, Inc. 1998 FX and Currency Option Definitions.
25.25 “Early Energy “means any energy that is available for consumption by the Consumer from the Project prior to the Commercial Operation Date.
25.26 “Elected Delivery” means an Account Holder’s decision to not Deploy a particular Solar Cell in the relevant Project, thereby obligating the Account Holder to collect the Solar Cell at the Project Site address.
25.27 “Electricity Price” means the amount of Project Currency per kilowatt hour to be paid by the Consumer during any Calculation Period.
25.28 “Eligible Currency” means the Project Currency and other fiat and digital currencies eligible for Purchase of Solar Cells for a Project, as indicated on the Services from time to time.
25.29 “EPC” means an engineering, procurement and construction company, responsible for design, purchase, and installation of the components of each Project.
25.30 “Escrow Account” means a demand deposit account, attorney’s trust account, or wallet at the Escrow Bank(s), crypto exchange, or other service providers to receive and hold payments, as the case may be, for which third party verification of conditions precedent is required for payments our of the account or wallet.
25.31 “Escrow Bank” means the financial institution at which SunEx SA holds Escrow Accounts for the purposes of receiving and paying funds to give effect to the SunEx Structure.
25.32 “Excess Pre-Payments” means excess amounts of Other Currency left from any Pre-Payments, following conversion of a portion of the Pre-Payments into the Project Currency.
25.33 “Governmental Authority” means any federal, state, municipal or local governmental authority, agency, or other entity having jurisdiction over the Project’s existence, operation, or value or status as an asset.
25.34 “ID” means the unique identifying label for each individual Solar Cell.
25.35 “Impermissible Activity” means:
25.35.1 Production or activities involving forced labor or child labor;
25.35.2 Production or trade in, or use of: (a) any product or activity deemed illegal under host country laws or regulations or international conventions and agreements; (b) weapons and munitions; © tobacco; (s) hard liquor; (d) gambling, casinos, and equivalent enterprises; (e) any business relating to pornography or prostitution; (f) wildlife or wildlife products regulated under CITES (Convention on International Trade in Endangered Species or Wild Fauna and Flora); (g) hazardous materials such as radioactive materials, unbounded asbestos fibres and products containing PCBs;
25.35.3 Cross-border trade in waste and waste products, unless compliant with the Basel Convention and underlying regulations; and
25.35.4 Drift net fishing in the marine environment using nets in excess of 2.5 km in length.
25.36 “Insurance” means the insurance policies arranged by SunEx US, SunEx SA, or related entities with respect to the Solar Plant.
25.37 “Insurance Provider” means the providers of Insurance selected by SunEx.
25.38 “Material Adverse Effect” means any change, circumstance or event that, in the aggregate, will (i) have a material adverse effect on Owners or SunEx, the Leasehold Interest or the Project, (ii) have a material adverse effect on the ability of Owners or SunEx to perform their respective obligations under these Terms or the Cell Owner Agreement, and (iii) constitute or result, if true, in a material breach of any representation, warranty, covenant or agreement set forth in these Terms or the Cell Owner Agreement.
25.39 “Non-Deliverable Substitute” means replacement of a payment obligation by an obligation to pay with an alternative currency, as further defined in the International Swaps and Derivatives Association, Inc. 1998 FX and Currency Option Definitions. Unless otherwise specified in the Cell Owner Agreement and Consumer Asset Lease, the default Non-Deliverable Substitute will be the U.S. Dollar.
25.40 “NSRO” means Nationally Recognized Statistical Rating Organizations as determined by the U.S. Securities and Exchange Commission.
25.41 “O&M” means any company charged with maintenance, management, repair and/or operation services in respect of each Project.
25.42 “Onboarding Compliance” means, with respect to a person or entity, confirmation of compliance with Know Your Customer, Anti-Money Laundering and OFAC requirements, and confirmation no Impermissible Activity has occurred.
25.43 “Ordered Cells Amount” means the sum of the integer number of Solar Cells that could be purchased given the Pre-Payments available in each Eligible Currency, in light of foreign exchange rates and estimated Transaction Expenses at the time.
25.44 “Ordered, Order” means submission by an Account Holder to SunEx via the Services an amount in a Eligible Currency with the intention of Purchasing one or multiple Solar Cells for a Project upon Crowdsale End.
25.45 “Other Currencies” means an Eligible Purchase Currencies, including other fiat and digital currencies as indicated on the Services from time to time, excluding the Project Currency.
25.46 “Owner” or “Solar Cell Owner” means any person or entity that purchases one or more Solar Cells using the Services.
25.47 “Payment Processing” means electronic funds transfer, debit order, credit card payment, or Block-chain transaction, following Standing Instructions, or as mutually agreed by a party and SunEx at the time. Credit Cards may include VISA, MasterCard, Diners Club, American Express, Discovery Card, Union Pay, and others indicated on the Services.
25.48 “Personal Information” means confidential information for personal identity verification and other information we require to ensure Onboarding Compliance. Personal Information also includes confidential financial and transaction-related information required to complete the commercial transactions contemplated on the Services and Block-chain.
25.49 “Pre-Built Projects” means Projects under construction and not yet operating, and fully constructed and operating Projects.
25.50 “Pre-Payment” means funds transferred to the appropriate Pre-Payment Escrow Account or digital currency wallet at an Escrow Bank, indicated on the Services for that Eligible Currency.
25.51 “Pre-Payment Escrow Accounts” means an Escrow Account specifically designated to receive and hold Pre-Payments for Solar Cells during a Crowdsale.
25.52 “Price Per Cell” means the price payable in the Project Currency by Owners per Solar Cell as reflected in the relevant Project Information Document and Cell Owner Agreement.
25.53 “Project” means a particular project in terms of which Solar Cells and Solar Equipment are installed on the premises of a Consumer as specified in the Project Information Document and Definitive Agreements.
25.54 “Project Currency” means the currency denomination of the Project equipment purchase amount and Consumer Rental.
25.55 “Project Information Document” means, with respect to each Project, the proposal presented to prospective Owners with the details of the Project and corresponding Crowdsale.
25.56 “Project State” means the nation, state, or municipal area of the Project, for which Governmental Authority may be exercised.
25.57 “Prospective Projects” means new potential Projects for which Solar Cells and Cell Owner Agreements are offered, and for which procurement and installation are subject to achieving the Target Cells Amount.
25.58 “Purchase” means valid purchase of a Solar Cell by an Account Holder via the Services.
25.59 “Rating Requirement” means that if Escrow Bank is rated by an NSRO, it will bear a local currency Pre-Payment or short-term senior unsecured rating of minimum “B2” or “B” as appropriate. If an Escrow Bank is unrated, the Rating Requirement will not apply.
25.60 “Registered User” means a user that has provided a name, email address, and other Personal Information to gain access to certain portions of the Services, but has not yet been granted an Account.
25.61 "Rental Payments " means payment of Solar Cell Owner Rental or Consumer Rentals, as the case may be.
25.62 “Reserve Escrow Account” means a segregated account for the purpose of holding Pre-Payments to be used for future Project repairs and replacement of equipment as may be necessary.
25.63 “Solar Cell” means a silicon cell generally housed inside a solar photovoltaic module that is made available via the Services.
25.64 “Solar Equipment” means the balance of equipment in each solar plant excluding the Solar Cells, forming the surrounding infrastructure that enables the Solar Cells to generate and deliver solar energy to the Consumer under the Consumer Asset Lease, including but not limited to cabling, structures, components of modules excluding photovoltaic cells, mounting, inverters, optimizers, communication equipment, and meters.
25.65 “Standing Instructions” means, with respect to each Account, confidential payment and settlement instructions for each Eligible Currency, pre-determined by the Account Holder and provided to SunEx. Standing Instructions are recorded by SunEx as Personal Information.
25.66 “Solar Cell Owner Rental” means the lease rental amounts payable by SunEx SA, SunEx US, their nominees or other related entities to Owners in terms of the Cell Owner Agreement, with respect to the Solar Cells leased by the Solar Call Owners to the Consumer pursuant to the Consumer Asset Lease.
25.67 “SunEx SA” means The Sun Exchange Proprietary Limited (Company Registration No. 2015/142280/07) whose physical address 192 Main Road, Muizenberg, Cape Town, 7945, South Africa.
25.68 “SunEx Structure” means the structure through which solar electricity generation systems are acquired and eventually leased to Consumers.
25.69 “SunEx US” means The Sun Exchange Incorporated (Registered Office: 525 West End Ave, Suite 10C, New York City, New York, 10025.
25.70 “Target Amount” means an aggregate Project Currency amount that must be Ordered to achieve for Crowdsale End, after taking into account the integer number of cells that could be purchased with Other Currencies at the time, and net of the Pre-Payments in respect of Solar Cells for Elected Delivery.
25.71 “Target Cells Amount” means number of Solar Cells for Prospective Projects that must be Ordered for in aggregate to achieve Crowdsale End, net of Solar Cells indicated for Elected Delivery.
25.72 “Tax” means all taxes, charges, duties, levies, deductions, withholdings or fees of any kind whatsoever, or any amount payable arising out of the foregoing, imposed, levied, collected, withheld or assessed by a Governmental Authority, together with any penalties, fines or interest relating thereto.
25.73 “Transaction Expenses” means payment processing and transaction fees and expenses.
25.74 “VAT” means Value-Added Tax, or any other consumption tax levied or imposed by a Governmental Authority.